Petitions to watch | Conference of June 7, 2012

Posted Mon, June 4th, 2012 10:53 pm by Matthew Bush

At its June 7, 2012 Conference, the Court will consider such issues as a suit for damages under the Constitution for the torture of a U.S. citizen, the culpability required to establish a due process violation for pre-trial detention, an Establishment Clause challenge to a veterans memorial containing a cross, and the standard of federal habeas review for state court factual determinations. This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Docket: 11-1327Issue(s): Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact.

Certiorari stage documents:

White v. Rice

Docket: 11-1262Issue(s): (1) Whether, in federal habeas review, a state court’s selection of one reasonable reading of the record over another can constitute an “unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2); and (2) whether 28 U.S.C. § 2254(e)(1)’s command that a habeas petitioner must overcome the presumption of correctness of a state factual determination with clear and convincing evidence fits with 28 U.S.C. § 2254(d)(2)’s bar of federal habeas relief on a state court merits adjudication unless the decision was “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”

Certiorari stage documents:

North Hudson Regional Fire & Rescue v. NAACP

Docket: 11-1247Issue(s): (1) Whether the strong-basis-in-evidence standard established in Ricci v. DeStefano provides a safe-haven defense to an employer’s use of a residency requirement which causes a disparate impact to African Americans, when elimination of the residency requirement creates a strong basis in evidence of disparate treatment liability to Hispanics; and (2) whether, where residency requirements in largely African-American jurisdictions are required by the federal government, the decision below, which struck down the residency requirement in a predominantly Hispanic jurisdiction, unlawfully elevates the importance of a disparate impact claim by African-Americans over a disparate treatment claim by Hispanics under Title VII.

Certiorari stage documents:

United States v. Trunk

Docket: 11-1115Issue(s): Whether the Mount Soledad Veterans Memorial in San Diego, California, which includes a Latin cross that is fully integrated among many secular symbols, violates the Establishment Clause.

Certiorari stage documents:

Mount Soledad Memorial Association v. Trunk

Docket: 11-998Issue(s): Whether the Mount Soledad Veterans Memorial – recognized by Congress as a national veterans memorial that has stood for over fifty years “as a tribute to the members of the United States Armed Forces who sacrificed their lives in the defense of the United States” – violates the Establishment Clause because it contains a cross among numerous other secular symbols of patriotism and sacrifice.

Certiorari stage documents:

Docket: 11-1085Issue(s): (1) Whether, in a misrepresentation case under Securities and Exchange Commission Rule 10b-5, the district court must require proof of materiality before certifying a plaintiff class based on the fraud-on-the-market theory; and (2) whether, in such a case, the district court must allow the defendant to present evidence rebutting the applicability of the fraud-on-the-market theory before certifying a plaintiff class based on that theory.

King v. United States

Docket: 11-959Issue(s): (1) Whether, when a false statement is made to an individual who has no connection whatsoever to the federal government, the false statement is nonetheless made in a “matter within the jurisdiction” of the United States, in violation of 18 U.S.C. § 1001, if the subject matter of the statement involves issues over which the federal government may exercise regulatory authority; and (2) whether the government exceeds its power under the Commerce Clause when it criminalizes underground injections of clean water into intrastate aquifers with no connection to underground sources of drinking water.

Certiorari stage documents:

Swanson v. Morgan

Docket: 11-941Issue(s): Whether, in this qualified immunity appeal from a motion to dismiss, the Fifth Circuit's discussion of the merits of the underlying constitutional issues should be vacated because the Fifth Circuit correctly held that the law was not clearly established, the parties do not have a continuing interest in the legal issues at stake, and the Fifth Circuit's discussion of the constitutional issue constitutes an impermissible advisory opinion.

Certiorari stage documents:

Morgan v. Swanson

Docket: 11-804Issue(s): (1) Whether it is clearly established that private non-curricular student speech may not be discriminated against solely on the basis of its religious viewpoint; and (2) whether, at a bare minimum, it is clearly established that private non-curricular student speech that takes place outside of the school and after school hours may not be discriminated against solely on the basis of its religious viewpoint.

The following petitions have been re-listed for the Conference of June 7. If any other paid petitions are redistributed for this Conference, we will add them below as soon as their redistribution is noted on the docket.

City of New Haven v. Briscoe

Docket: 11-1024Issue(s): Whether a lower court may disregard this Court’s express guidance and create Title VII disparate-impact liability for actions this Court ordered an employer to undertake as a remedy for a Title VII disparate-treatment violation.

Note: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in this case.Docket: 11-864Issue(s): Whether a district court may
certify a class action without resolving whether the
plaintiff class has introduced admissible evidence,
including expert testimony, to show that the case is
susceptible to awarding damages on a class-wide basis.

Certiorari stage documents:

Docket: 11-1011Issue(s): (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated AEDPA § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than this Court’s clearly established law as set forth in Strickland v. Washington, that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.

Certiorari stage documents:

Latif v. Obama

Docket: 11-1027Issue(s): (1) Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the “meaningful opportunity” to contest the lawfulness of their detention guaranteed by Boumediene v. Bush; (2) whether a court of appeals’ substitution of its own analysis of the record evidence for that of a district court in a habeas case, where there is no finding that the district court committed clear error, improperly intrudes upon the fact-finding function of the district court and exceeds the appellate function of the court of appeals; and (3) whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

Al-Bihani v. Obama

Docket: 10-1383Issue(s): Whether the laws of armed conflict apply to determine the scope of who may be indefinitely detained under the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001).

Certiorari stage documents:

Uthman v. Obama

Docket: 11-413Issue(s): (1) Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda; and (2) whether the AUMF, as applied by the court of appeals for the D.C. Circuit, violates the command of Boumediene v. Bush that “[t]he habeas court . . . [will] . . . conduct a meaningful review of . . . the Executive’s power to detain” an individual, and violates the Suspension Clause, U.S. CONST. art. I, § 9, cl. 2.

Almerfedi v. Obama

Docket: 11-683Issue(s): (1) Whether the Authorization for Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224 (2001) (“AUMF”), or Boumediene v. Bush, permits detention on the basis of three facts that are themselves not incriminating; (2) whether the AUMF or Boumediene authorizes a standard of proof under which, if the government puts forward some credible evidence justifying the detainee’s detention, the detainee, to prevail, must rebut government’s evidence; and (3) whether the Court of Appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

Al Kandari v. United States

Docket: 11-1054Issue(s): (1) Whether the Federal Rules of Evidence, including the rules governing admissibility of hearsay evidence, apply to habeas corpus cases brought by Guantanamo detainees; and (2) whether the court of appeals’ disregard for the unambiguous requirements of the Federal Rules
of Evidence so far departs from the accepted and usual course of judicial proceedings as to warrant this Court’s exercise of its supervisory power.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.